United States v. Conrad

November 12, 2009

UNITED STATES OF AMERICA, PLAINTIFF,v.DAVID CONRAD, DEFENDANT.

The opinion of the court was delivered by: Amy J. St. Eve, District Court Judge

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant David Conrad's Motion to Disregard Previously Suppressed Evidence Presented at Second Suppression Hearing and to Suppress Exhibit 80 ("Motion"). For the reasons below, the Court denies the Motion and finds that Exhibit 81 is the laptop computer subject to the Court's earlier suppression ruling.

BACKGROUND

On November 16, 2005, the Government filed an information against David Conrad. On January 23, 2007, a federal grand jury returned a Superseding Indictment ("Indictment") charging Defendant David Conrad with eight counts of possessing, transporting, advertising, and distributing child pornography in violation of 18 U.S.C. §§ 2251(c)(1)(A), 2251(d), 2252A(a)(2)(A), 2252A(a)(1), 2252A(a)(5)(B), 2252A(b)(1), and 2252A(b)(2).

Law enforcement agents obtained some of the evidence supporting the Indictment on December 20, 2002, from both the Conrad family residence, located in Geneva, Illinois ("the Geneva Residence"), and Defendant's Chicago, Illinois apartment ("the Chicago Apartment"). That evidence includes two Compaq laptop computers, one with serial number V708BMS29179 (identified during these proceedings as "Exhibit 81") and one with serial number 6D1CJCH1J0MJ (identified during these proceedings as "Exhibit 80"). The agents recovered one laptop from the Geneva Residence and one from the Chicago Apartment. Law enforcement agents, however, did not contemporaneously record which laptop computer was obtained from the Geneva Residence and which was obtained from the Chicago Apartment. The Government's initial examination did not reveal any relevant evidence on Exhibit 80.

On September 24, 2008, following a three-day suppression hearing, the Court suppressed certain evidence that law enforcement agents had obtained at the Geneva Residence on December 20, 2002, including a laptop computer Defendant had retrieved from his Porsche. See United States v. Conrad, 578 F. Supp. 2d 1016, 1036 (N.D. Ill. 2008). The evidence was suppressed because law enforcement agents violated Defendant's Fourth Amendment rights when they entered the curtilage at the Geneva Residence. The Court declined to suppress evidence obtained from the Chicago Apartment, including another laptop computer. Id. at 1038.

Following the suppression ruling, the Government applied for a warrant to re-search Exhibit 80, among other items. Magistrate Judge Keys issued the search warrant on May 14, 2009, and the Government subsequently found relevant evidence on Exhibit 80. After the Government informed Defendant on June 23, 2009, that it had searched Exhibit 80 pursuant to the search warrant and found relevant evidence on it, Defendant filed this Motion.

The Court held another suppression hearing on July 13 and 16, 2009, to address the merits of Defendant's Motion, to determine which laptop computer came from which location and, accordingly, to decide which laptop is subject to the Court's earlier suppression ruling. In making that determination, Defendant asks the Court to disregard evidence obtained from the Geneva Residence, including the laptop obtained there and Defendant's statement that he may have some child pornography on an old laptop in his car.

RELEVANT FACTS

In light of the lengthy suppression ruling the Court has already issued, the Court assumes the parties' familiarity with the facts of this case. As relevant here, three witnesses testified during the July 2009 hearing: (1) FBI Special Agent Scott McDonough, (2) FBI Special Agent Tracie Keegan, and (3) Palos Heights Police Department Sergeant Michael Zaglifa. Defendant did not call any witnesses or introduce any evidence. During the hearing, the Court closely observed each witness who testified and evaluated the credibility and demeanor of each witness. The Court also considered, among other things, Exhibits 80, 81, and 85, an affidavit from Hewlett Packard ("HP Affidavit"). The following factual findings are based on the evidence presented at the suppression hearing.

Agent Keegan and Sergeant Zaglifa were present with Defendant David Conrad at the Geneva Residence on the morning of December 20, 2002. (July 13, 2009 Tr. at 80:16-81:3; July 16, 2009 Tr. at 2:5-16.) Before Defendant Conrad left the Geneva Residence for the Chicago Apartment, he told Agent Keegan and Sergeant Zaglifa that he thought he might have some child pornography on an old laptop in his car. (July 13, 2009 Tr. at 82:8-16; July 16, 2009 Tr. at 4:5-7.) Agent Keegan and Sergeant Zaglifa then went with Defendant to his Porsche, where Defendant retrieved a laptop and gave it to Sergeant Zaglifa. (July 13, 2009 Tr. at 82:17-83:2; July 16, 2009 Tr. at 4:5-16.) Sergeant Zaglifa then commented that Defendant was not joking when he said the laptop was old, and Defendant laughed. (July 16, 2009 Tr. at 4:20-5:2.)

Sergeant Zaglifa identified Exhibit 81 as the laptop that Defendant Conrad handed him at the Geneva Residence, and he testified that a different laptop he subsequently saw at the Chicago Apartment was newer than Exhibit 81. (Id. at 5:3-6:5.) Agent Keegan testified that she could not specifically identify the laptop that Defendant had handed to Sergeant Zaglifa at the Geneva Residence. (July 13, 2009 Tr. at 82:17-83:8.) She did testify, however, that the laptop obtained from Defendant's Porsche was old and that it was not Exhibit 80, which she said was newer than the laptop from the Porsche. (Id. at 83:5-10, 84:22-85:5.) Exhibit 80 was manufactured in 1997, and Exhibit 81 was manufactured five years later. (HP Affidavit at ¶¶ 9, 10.)

Agent McDonough was one of several law enforcement agents at the Chicago Apartment on December 20, 2002. Before he, Defendant Conrad, or any other law enforcement agent entered the Chicago Apartment, Agent McDonough observed an older brown laptop computer outside the Chicago Apartment. (July 13, 2009 Tr. at 7:14-8:3.) Agent McDonough also recalled Agent Keegan telling him that law enforcement had recovered an old laptop from the Porsche at the Geneva Residence. (Id. at 6:21-24.) After Agent McDonough entered the Chicago Apartment, Defendant gave a statement to Agent McDonough and Sergeant Zaglifa, in which Defendant told them about a new laptop computer in the Chicago Apartment, which Defendant said he used as his primary laptop to operate his file server. (Id. at 8:4-9:14.) Defendant also told Agent McDonough and Sergeant Zaglifa that he recently transferred all video and image files of child pornography from the newer laptop to an external hard drive that was also located in the Chicago Apartment. (Id. at 9:8-14.) Exhibit 80 has two UBS ports, which can be used to connect with the external hard drive obtained at the Chicago Apartment. (Id. at 19:10-17.) Exhibit 81 does not have a USB port and cannot be connected with the external hard drive. (Id. at 19:18-20:8.)

Agent McDonough observed Exhibit 80 at the Chicago Apartment, and he identified it as the laptop obtained there, based on its newness, silver and gray-blue color around the edge, and circle on the top that says "Compaq." (Id. at 12:16-13:3, 16:9-16.) Additionally, Agent McDonough identified Exhibit 81 as the old laptop that Agent Keegan and Detective Zaglifa brought to the Chicago Apartment, based on its old age, ...

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